Live streaming of court proceedings can be a way forward: SC

Supreme Court while reviewing a number of petitions regarding live
streaming of court proceedings on Wednesday, September 26, 2018 observed that
cases of “constitutional importance” can
be live streamed. Justice D Y Chandrachud penned his views in a somewhat curious
manner stating, “Sunlight
is the best disinfectant”
while allowing the live streaming of court proceedings in some cases on a trial
basis.

Facts of the case

Senior Advocate of Supreme Court, Indira Jaising had petitioned the
Court in January this year to allow live streaming of court proceedings in certain cases
and to make appropriate guidelines for the same. She stated, “live streaming of Supreme Court cases of
constitutional and national importance having an impact on the public at large
will empower and provide access
to the ordinary citizens who cannot personally
come to court due to social economic constraints though the decision of
the court will impact them.”

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Advocate Jaising further reiterated, “successful implementation of recording, telecasting and webcasting from the Parliament should follow to the
Supreme Court, especially in matters of
public importance, which will promote transparency and accountability in
administration of justice and will inspire confidence of the public in the
judiciary.” She explained, “under Article 19(1)(a) of the Constitution of India” she has a right to information in real time about the proceedings in
Supreme Court of India on all matters of great public importance.

Advocate Jaising referred to earlier Supreme Court ruling of Olga Tellis
v. Bombay Municipal Corpn.,
(1985) 3 SCC 545 which held that “justice must not only be done but must manifestly be seen to be done”
and according to her this is a perfect premise for live streaming of court
proceedings and hence she requested for a
writ of mandamus be issued regarding
the same.

Law student Swapnil Tripathi on February
11, 2018 had also filed a petition challenging the
ban on legal interns on entering the Court in miscellaneous days, Mondays and
Fridays, when public interest litigations were heard, “as most of the important arguments and leading cases are listed and
heard on these two days only, therefore denying interns entry on those specific
days, defeats the very objective of a legal internship and the provision.” He
also submitted, “the entry ban on law
interns on miscellaneous days is a violation
of Article 14 of the constitution” and requested the Court for issuance of “a writ of mandamus, or any other writ or direction to the Respondent to
construct live streaming rooms within the Supreme Court premises granting
access to legal interns.”

Attorney General (AG), K K Venugopal was consulted by the Apex Court
regarding his views on live streaming of court proceedings and he stated that the
government’s stand on this issue is to proceed cautiously. Live streaming, he recommended, “may be initially restricted to
only cases involving constitutional issues, which the Chief Justice decides,
and no other matters, to see the reactions and the responses. Then a decision
may be taken one way or the other.”

Court ruling

The petitions were heard by the three-judge Bench comprising Chief
Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud and
they had reserved their judgements since August 24th. Justice
Chandrachud while penning his views on the cases had also recorded CJI Misra’s
assessments which concurred with him while Justice Khanwilkar delivered a
separate statement of verdict. But the Bench unanimously voted in favour of
allowing live streaming of court proceedings on a trial basis and the top court
suggested exhaustive guidelines regarding the matter.

Justice Khanwilkar in his ruling clarified, “such a claim will have to be examined by the concerned Court and for
which reason, a just regulatory framework must be provided for, including
obtaining prior consent of the parties to the proceedings to be live streamed.
The project of live streaming of the court proceedings of the Supreme Court must
be implemented in a progressive, structured and phased manner, with certain
safeguards to ensure that the purpose of live streaming of proceedings is
achieved holistically and that it does not interfere with the administration of
justice or the dignity and majesty of the Court hearing the matter and/or
impinge upon any rights of the litigants or witnesses.”

Supreme Court on the basis of recommendations of AG and Senior Advocate
Jaising framed a few working guidelines regarding the live streaming which the Court suggested should be kept
in mind to start the process. According to the Apex Court –

Only a specified category of cases or cases
of constitutional and national importance being argued for final hearing before
the Constitution Bench be live streamed as a pilot project.

Prior permission of the concerned Court
will have to be sought in writing, in advance, in conformity with the
prescribed procedure.

Prior consent of all the parties to the
concerned proceedings must be insisted upon and if there is no unanimity
between them, the concerned Court can take the appropriate decision in the
matter for live streaming of the court proceedings of that case. The discretion
exercised by the Court shall be treated as final.

The concerned court would retain its power
to revoke the permission at any stage of the proceedings suo motu or on an application filed by any party to the proceeding
or otherwise, in that regard, if the situation so warrants, keeping in mind
that the cause of administration of justice should not suffer in any manner.

The Apex Court further held, “the
Court will retain copyright over the broadcasted material and have the final
say in respect of use of the coverage material. Any reproduction,
re-broadcasting, transmission, publication, re-publication, copying, storage
and/or modification of any part(s) of the original broadcast of Court
proceedings, in any form, physical, digital or otherwise, must be prohibited.”
Not only that any violation of the rules will incur penalty and the “person engaging in such act(s) can be
proceeded under, but not limited to, the Indian Copyright Act, 1957, the Indian
Penal Code, 1860, the Information Technology Act, 2000 and the Contempt of
Courts Act, 1971.”

Impact of the judgment

As pointed out by Senior Advocate Jaising that live streaming of court
proceedings has its importance in inspiring people’s faith in justice, a
sentiment which was echoed by Justice Khanwilkar when he observed, “it can epitomize transparency, good governance
and accountability, and … would give the viewing public a virtual presence in
the courtroom.” Justice Chandrachud in his concurring verdict opined, “sunlight is the best disinfectant.
Live-streaming as an extension of the principle of open courts will ensure that
the interface between a court hearing with virtual reality will result in the
dissemination of information in the widest possible sense, imparting
transparency and accountability to the judicial process.”

The top court acknowledged, “live
streaming of court proceedings in the prescribed digital format would be an
affirmation of the constitutional rights bestowed upon the public and the
litigants in particular.” But also cautioned public privacy rights of the
litigants or witnesses should not be trifled with “and a proper regulatory framework must be provided in that regard by
formulating rules in exercise of the power under Article 145 of the
Constitution.”
Almost all countries of the world believe in the
benefits of open court system; and live transmission of court proceedings are
the norm of developed countries in EU, Australia and America. Transparency in
legal process goes a long way in reaffirming faith in justice system as it
involves the general public in issues of public concern and truly sow the seeds
of participatory democracy. India in its evolution in becoming a major global
power and as the largest democracy in the world has the responsibility of
modernizing its judiciary so as to inspire faith in its strong justice system
not only amongst the Indians but also in the minds of the global populace. This
will in turn boost its trade and economy, facilitate advancement in the fields
of science and technology and also gave us the edge in our diplomatic pursuits giving
us a firm voice at the international arena.

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